Separation Agreements/Judicial Separation
There are two ways to legally separate in the Republic of Ireland, either by way of a Separation Agreement or a Judicial Separation.
Deed of Separation/Separation Agreement:
When people decide to end that marriage, they may enter into a Separation Agreement.
A Separation Agreement is a legally binding contract entered into between the parties which paves the way for the couple living after the parties have separated.
A legal separation formalises the issues between the parties to include the family home maintenance, custody/access, succession rights, income tax etc.
If a couple wish to negotiate a Separation Agreement though solicitors, then each party to that Agreement should have their own solicitor to represent their interests.
A Separation Agreement has the effect of a legal separation.
If the parties can resolve the issue by way of a Separation Agreement, they will not have to attend Court however , if they wish for the Separation Agreement to be ruled by the Court, this can be done.
In certain circumstances where people wish to separate but cannot agree the terms, they can obtain a separation through the courts by way of a judicial separation.
Any person can apply for a decree of judicial separation from his or her spouse, as long as one of the following criteria are met:
- One of the parties to marriage has committed adultery
- One of the parties to the marriage has behaved in such a way that it would be unreasonable to expect the other person to continue to live with them
- One of the parties to the marriage has deserted the other for continuous period of least one year
- The parties to the marriage have lived apart from one another for a continuous period of at least one year and both parties agree to the Decree of Judicial Separation being granted
- The couple have lived apart from one another for at least three years
- The Court considers that a normal marital relationship has not existed between the spouses for at least one year
A decree of judicial separation has the effect of legally separating the parties.
A decree of judicial separation is a court order, and the decree of judicial separation will include ancillary court orders, which are orders which will deal with the issues of the marital breakdown such as what should happen to the family home, who should pay maintenance, custody/access, guardianship, succession rights, pension rights, etc.
These ancillary orders can be agreed between the parties and ruled on a consensual basis by the court, when the court is granting the decree of Judicial Separation or in default of agreement, the court will make the ancillary orders based on the evidence that they hear from the parties to the marriage.
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